The National Labor Relations Board Proposes New Rule. Will Your Business Be Affected?
The National Labor Relations Board (“NLRB”) oversees the enforcement of the National Labor Relations Act (“NLRA”) and is authorized to promulgate rules enforcing the NLRA. As a matter of background, the NLRA is the federal law that protects an employee’s right, among other rights, to engage in union organizing activities and to join a union. Employers with workforces covered by a collective bargaining agreement are familiar with the provisions of the NLRA, while employers with non-unionized workforces generally are not as familiar with the requirements imposed on employers under the NLRA. While some would say that ignorance is bliss, the NLRB would disagree.
In an effort to educate private sector workers of their rights under the NLRA, the NLRB has proposed a new rule. While the rule is not final nor in final form, private sector employers with a gross annual sales volume of more than $500,000 should take note that times may be changing.
Currently, the NLRA (unlike most federal employment laws) imposes no requirement on a non-unionized employer to advise employees of their rights under the NLRA. In an effort to remedy this situation, the NLRB proposes a new rule that requires employers to advise employees of their NLRA rights. Additionally, the rule would require a covered employer that communicates electronically with employees (email or intranet) to disseminate the notice electronically.
What follows are some (but not all) of the rights that the NLRB has included in its content-specific notice:
Under the NLRA, you have the right to:
- Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
- Form, join or assist a union.
- Discuss your terms and conditions of employment or union organizing with your co-workers or a union.
Under the NLRA, it is illegal for your employer to:
- Prohibit you from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
- Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.
- Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
The language in the proposed notice is intended to expand upon the actual text of Section 7 of the NLRA which guarantees, in part, that employees of a covered employer:
[S]hall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities[.]
Why has the NLRB proposed this new rule?
In short, the NLRB believes that most non-unionized American workers are ignorant of their rights under the NLRA (which is probably true). Another reason is due to the fact that the much touted Employee Free Choice Act of 2007 failed to pass despite the prognosticator’s predictions that it would after Barack Obama was elected to the presidency.
Following the lead of agencies like the U.S. Department of Labor, the NLRB is being proactive, instead of waiting for legislation to pass. Instead of a legislative solution, the NLRB will opt for the next best thing, i.e. a bureaucratic solution. Like other federal agencies, the NLRB has a goal of educating workers regarding their rights.
Given the growing number of educational outreach programs launched, being launched or sponsored by federal agencies charged with enforcement of employment laws, employers are well advised to seek out competent legal advice when employees start asking questions about their legal rights.
When employees start asking questions about their rights under the NLRA, will you be ready to respond?
A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice. Competent legal counsel should be consulted if you have questions regarding compliance with the law.
Questions regarding the content of this column or past columns may be e-mailed to Christina Harris Schwinn. To view past columns written by Ms. Schwinn please visit the firm’s website at www.paveselaw.com. Ms. Schwinn is a partner and an experienced employment and real estate law attorney with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone: (239) 336-6228; Telecopier: (239) 332-2243.
 Currently, most federal laws only require notice posting only.
 29 U.S.C. §157.
 Generally speaking, a covered employer is an employer with more than $500,000 in gross sales volume.
 For more information regarding the Employee Free Choice Act, see Could It Be A New Era In Employee Rights?, March, 2009.